VanDeMark v. McDonald's Corp.
24 I.E.R. Cas. (BNA) 1727, 904 A.2d 627, 153 N.H. 753 (2006)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A franchisor is not liable for injuries to its franchisee's employee resulting from a criminal attack when the franchisor provides only non-mandatory security guidelines and does not exercise specific control over the franchisee's security operations.
Facts:
- In December 1989, McDonald’s Corporation entered into franchise agreements with Colley/McCoy Management Company, LLC to operate a restaurant in Concord.
- The agreements explicitly stated that Colley/McCoy was an independent contractor and not an agent of McDonald's.
- Colley/McCoy was responsible for all aspects of its business operations, including hiring, training, paying for maintenance, and providing insurance.
- McDonald's published an Operations & Training (O&T) manual with safety procedures, but stated that for independent franchisees like Colley/McCoy, these policies were 'encouraged,' not mandatory.
- A McDonald's field consultant, Christine Perrault, evaluated the restaurant using a 'QSC Play Book' and found several deficiencies in the 'Safety and Security' system but did not request a mandatory action plan to correct them.
- Dana VanDeMark, an employee of Colley/McCoy, worked as the sole overnight custodian while the restaurant was closed.
- On February 6, 2003, two intruders attacked VanDeMark outside the restaurant, forced him inside, tied him up, and beat him unconscious.
- After the attack, VanDeMark attempted to use a panic button in the restaurant, which he alleged was broken and failed to alert the police.
Procedural Posture:
- Dana VanDeMark sued McDonald's Corporation in the New Hampshire Superior Court, alleging claims for negligence and vicarious liability.
- McDonald's filed a motion for summary judgment on both claims.
- The trial court granted McDonald's motion for summary judgment, finding that McDonald's did not assume a duty of care and that no agency relationship existed.
- VanDeMark, the plaintiff-appellant, appealed the trial court's grant of summary judgment to the New Hampshire Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is a franchisor liable for injuries to its franchisee's employee resulting from a criminal attack on the franchisee's premises, either under a theory of voluntarily assumed duty or vicarious liability, when the franchisor provides non-mandatory security guidelines but does not control the specific security operations of the franchisee?
Opinions:
Majority - Dalianis, J.
No. A franchisor does not assume a duty to protect a franchisee's employees and is not vicariously liable for the franchisee's security failures when it does not mandate security policies or control the specific instrumentality that caused the harm. On the negligence claim, the court found McDonald's did not voluntarily assume a duty to provide security for Colley/McCoy's employees. The court reasoned that both the O&T manual and the QSC Play Book contained recommendations and encouragement, not mandates. Unlike the precedent in Martin v. McDonald’s Corp., where franchisor executives directly managed security for the franchisee, here McDonald's personnel only recommended security procedures. On the vicarious liability claim, the court determined that no agency relationship existed with respect to security. Following the reasoning of Wendy Hong Wu v. Dunkin' Donuts, Inc., the court held that liability turns narrowly on the franchisor's control over the specific 'instrumentality' that caused the harm—in this case, security operations. Although McDonald's exercised substantial control over brand standards to ensure uniformity, this control did not extend to security policies, which remained the responsibility of the franchisee, Colley/McCoy.
Analysis:
This case reinforces the legal separation between a franchisor and franchisee regarding tort liability for third-party criminal acts. It establishes that a franchisor's general control over branding, product quality, and operational systems is insufficient to create vicarious liability for security lapses. The decision clarifies that liability requires control over the specific 'instrumentality' causing harm, providing a clear standard for future cases. This ruling protects the franchise business model by allowing franchisors to provide guidance and recommendations without assuming a legal duty of care or creating an agency relationship for security matters.
Unlock the full brief for VanDeMark v. McDonald's Corp.